How to Stop a Predator: The Rush to Enact Mandatory Sex Offender Residency Restrictions and Why States Should Abstain

February 2008:

Introduction
Many parents are terrified to learn that a convicted sex offender is living amongst their children, perhaps just a few doors from their home. One need only view Dateline’s popular investigative television series “To Catch a Predator” to learn of the public’s fear of and fascination with sexual pedophiles.1 Over the last few decades, every new year seems to bring another high-profile child-sex-offender case. In 1994, seven-year-old Megan Kanka was kidnapped, raped, and murdered by a convicted sex offender living across the street unbeknownst to her family.2 In 2005, nine-year-old Jessica Lunsford was abducted from her bedroom and sexually assaulted by a convicted sex offender staying at his sister-in-law’s home next door; she was found buried in a neighbor’s yard three weeks later.3 These types of heinous attacks bring anger and confusion, as the community wonders why more was not done to prevent known offenders from preying on our nation’s youth. In response to the public outcry, Congress and state legislatures have enacted sex offender laws in an attempt to assuage the community’s fears.4

In 2005 alone, state legislatures across the nation enacted more than 100 sex offender laws5 in an attempt to manage and control their sex offender populations. More recently, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006, allowing law enforcement agencies better access to registry information to help them track sex offenders’ movements.6 As a result of these new legal measures, over half a million offenders are listed in mandatory state sex offender registries,7 and each year there are 60,000 to 70,000 new arrests on charges of child sexual assault.8 Given the magnitude of the problem, it is hardly surprising that few citizens are sympathetic toward sex offenders’ constitutional rights.

A new trend in state legislation emerged as twenty-two states entered legally unsettled waters by enacting various residency restrictions for convicted sex offenders.9 Legislators tout the need for such residency restrictions to reduce child sex offenders’ opportunities for contact with potential victims.10 However, courts disagree whether these new laws are constitutional, and research increasingly questions their utility. This Comment will first look at the primary legal questions facing the courts, examining various legal challenges to state residency restrictions and the limited research surrounding the efficacy of such restrictions. Next, this Comment will address the 2006 California ballot measure Proposition 83,11 which serves as a practical case study of these new restrictions and their unsettled legal ramifications. Finally, this Comment will examine Oregon’s nonmandatory residency restriction12 and explain why it serves as the best model for achieving the goals of protecting our children, monitoring the sex offender population, and withstanding judicial review. Ultimately, this Comment will attempt to show that research on mandatory residency restrictions may affect the way future courts rule on these restrictions. This Comment will also attempt to persuade those presently in favor of mandatory residency restrictions that more flexible, nonmandatory restrictions will increase the likelihood of achieving their stated objectives.

..The Rest of the Paper.. by * Justin H. Boyd, Juris Doctorate expected 2008 from the University of Oregon School of Law. The author would like to thank Keith Hirokawa, professor at Texas Wesleyan School of Law, for his guidance and much appreciated advice.